The perfect storm: Republicans to control Michigan Supreme Court for a long, long time to come

January 17, 2013by Steven Gursten

To be clear, I have nothing against Republicans. On many issues, I am one. But I do have something against activist judges and justices who ignore settled law to follow an extreme political agenda.

Michigan saw that happen during the previous “Gang of Four” era. These four Engler appointees not only took control of the Court, but they caused so many lawyers and judges to lose faith in our civil justice system. As Justice Stevens observed in his dissent in the Citizens United case: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” Citizens United v. FEC, 130 S. Ct. 876, 954 (2010) (Stevens, J., dissenting). The way our highest Court ruled consistently against individual citizens and for the insurance industry, dismantling entire areas of consumer protection and personal injury law in its wake was and remains shocking.

Are we to return to this? Sadly, it will likely get worse before it gets better. In fact, it could get much worse. Justice Michael Cavanagh cannot run again for his seat on the Court because the Michigan Constitution bars a justice from running who is over age 70. Then there are his rumored health issues. These may even lead to a replacement being appointed by Governor Rick Snyder before he serves out his current term. And that could lead to a 6-1 Republican-controlled Michigan Supreme Court.

So, the Michigan Supreme Court will now be controlled by a strong Republican majority for a very long time to come. The question is: what kind of Republicans will this new group turn out to be?

Will they be clones of the Engler “Gang of Four,” the type that methodically finds some way to side with the insurance companies over the citizens of this state, no matter how absurd the result? That is certainly what happened recently in Ile v. Foremost Insurance Company.

Or, will they be conservative in their views, but still keep the promises they made to follow and respect the law? One reason this writer was such a strong critic of Justice Young when he ran for re-election was because of the Orwellian double-speak that occurs today. Justice Young campaigned as someone who respects stare decisis and precedent, but his actions on the bench show a clear pattern of anything but. Here’s a blog post from his election on why the Tea Party should actually dislike Justice Young.

We have all failed the people of this state. Our Supreme Court has lost the respect of the legal community, and the lawyers and judges who must have faith in the people who wear the robes. We expect rulings today from both sides based upon political ideology, based upon who will win and who will lose, not based upon the law. We all lose faith in our judiciary and our justice system when this happens. The money in judicial campaigns is toxic, with each side — Democrats and Republicans — both guilty and both expecting to buy judges who will consistently vote their way. Both political parties nominate judges based upon gender and Irish-sounding surnames, instead of on who will make excellent jurists to serve the citizens of our state.

I have long advocated that we nominate our justices for the Michigan Supreme Court in a different way. Whether that be by a respected bi-partisan commission of judges and lawyers, or some different way. But I do know, as does every lawyer and judge in this state, that our current system is clearly broken.

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